Monday, April 3, 2017

REPLAY: Why I Oppose Gorsuch's Confirmation

If you have not already done so, now would be a good time to write call and fax your U.S. Senator to oppose the confirmation of Judge Neil Gorsuch. Neither faxes nor email have the same effect as a one-page letter with a full return address on the envelope. A conservative can also value the lives of LGBT citizens. Exhibit A is Ted Olson, former solicitor general under George W. Bush. Olson was considered a potential nominee to the Supreme Court to fill the seat vacated by Sandra Day O'Connor. I am not suggesting that Olson is a viable candidate; only that a far-right conservative need not be anti-LGBT.

A sample follows. It went to Nelson and Rubio. I also sent this (slightly revised) to Feinstein as ranking member of the Judiciary Committee:

I am writing today to oppose the confirmation of Judge Neil M. Gorsuch to serve as a justice of the Supreme Court.

I am deeply troubled by Judge Gorsuch’s opinion at the Tenth Circuit in Hobby Lobby v. Burwell. Judge Gorsuch asserted that Hobby Lobby would be “complicit” in the effect of the birth control decisions of its employees. Were that reasoning applied to state LGBT non-discrimination laws they could be held invalid. Every homophobic baker or florist could claim that they were participating in a same-sex wedding making them complicit in something that is contrary to their sincerely held religious beliefs. It would also mean that someone like Kim Davis would have a reasonable affirmative defense of her outrageous anti-gay conduct.

This dangerous thinking is contrary to numerous precedents including Employment Division v. Smith (1990). In that case, writing for the majority, Justice Scalia held that there are no religious exemptions to otherwise valid laws. Judge Gorsuch seems to support the proposition that people of faith (or people claiming to be) have a different set of laws than everyone else. Indeed it could go so far as to imperil the 1964 Civil Rights Act. I would remind Judge Gorsuch that the Klan proclaims itself to be a Christian organization. Therefore, the issue is not Judge Gorsuch’s opinion but my deep concern for how he got there.

I hope that you will take this into consideration when you have the opportunity to consider Judge Gorsuch’s nomination. He is a relatively young man and we could be stuck with him for several decades. The judge has impressive academic and legal credentials. That does not necessarily mean that he is well-suited for the Supreme Court which depends upon sound judgment.